Executive Briefing August 4, 2017

HILL UPDATE

Microsoft President and Chief Legal Officer Brad Smith blogged his support for ICPA. He wrote: “Sens. Orrin Hatch (R-Utah), Christopher Coons (D-Delaware), and Dean Heller (R-Nevada) introduced legislation that would clarify how U.S. warrants for digital information apply in the U.S. and abroad. The International Communications Privacy Act (ICPA) updates antiquated data laws to better meet the needs of law enforcement, while protecting people’s privacy rights. In today’s fast-moving digital world, it’s important that law enforcement can quickly access evidence across borders to solve and prevent crime. But it’s also important to have a strong and fair legal process in place to protect citizens when governments want to access their email and other online data. This timely, much-needed legislation allows law enforcement agencies to do their jobs while respecting borders and the timeless values cherished by people around the world.”

Email service providers and cloud computing companies would gain clarity on legal standards for law enforcement access to stored communications under three bipartisan Senate bills. The bills, introduced July 27, would take different approaches to update the decades-old Electronic Communications Privacy Act (ECPA). The 1986 law allows access to consumer emails stored more than 180 days with a subpoena or a court order. ECPA generally requires the government to obtain a warrant to access data stored for less time. Warrants must be supported by probable cause —a higher standard than needed for subpoenas or other court orders.

Senators introduced bipartisan legislation Tuesday that would create a legal framework allowing law enforcement to access Americans’ electronic communications in servers located in other countries. The International Communications Privacy Act from Sens. Orrin Hatch (R-Utah) and Chris Coons (D-Del.) would also require law enforcement to notify other countries of such data collection on their citizens in accordance with their laws. The bill also allows law enforcement to get communications regarding foreign nationals in certain instances. “The potential global reach of government warrant authority has significant implications for multinational businesses and their customers. Failing to address this issue in a reasonable, comprehensive way will only continue to cause problems between American businesses and the U.S. government,” Hatch said in a statement.

FIRST IN MT: A HILL BOOST FOR WHITE SPACES — Rep. Kevin Cramer (R-N.D.) assembled 42 House lawmakers for a letter to the FCC today favoring use of TV white spaces for rural broadband, a plan popularized by Microsoft. The ask: “preserve at least three, 6 MHz television white spaces [spectrum] channels in every media market.” Cramer secured sign-on from senior Republicans such as House Republican Conference Chairwoman Cathy McMorris Rodgers (Wash.) and Rep. Darrell Issa (Calif.), as well as tech-friendly Democrats including Reps. Peter Welch (Vt.),Suzan DelBene(Wash.) and Anna Eshoo (Calif.). One loud critic is the National Association of Broadcasters, and last week saw skeptical op-eds from former Federal Emergency Management Agency administrator Craig Fugate and Harvard Law School professor Susan Crawford. But these lawmakers, with ties to the Rural Broadband Caucus and leadership, say TV white spaces “have strong potential to revolutionize broadband internet accessibility in rural areas” and create dependendableinternet connections that are “extremely cost-effective requiring minimal infrastructure investments.” And don’t forget, a similar letter is likely coming from governors.

On Thursday, July 13th, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet held yet another one-sided hearing on the topic of patent reform. Although one panel witness was able to provide substantive commentary on ways to balance the current iteration of the U.S. patent system, a good deal of that day’s discussion was railroaded by meaningless puffery on “patent trolls” provided by poor panel choices. As was the case with the June 13th House IP subcommittee hearing on the effects of the U.S. Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, at least one witness sitting on the House IP subcommittee’s panel seemed to have no business being there in the first place. Tom Lee, a software engineer at geodata firm Mapbox, took time during his testimony to voice his concerns on “bad patents” and “patent trolls,” adding that it was “particularly galling to see efforts to weaken the inter partes review (IPR) system.”

A pair of senators introduced bipartisan legislation on Tuesday that aims to improve wireless networks in underserved rural areas of America. In Sens. Cory Gardner (R-Colo.) and Maggie Hassan’s (D-N.H.) Advancing Innovation and Reinvigorating Widespread Access to Viable Electromagnetic Spectrum (AIRWAVES) bill, they propose opening up spectrum space for commercial licensed and unlicensed use with the hope that doing so will drive down wireless costs and increase its accessibility. Gardner and Hassan say they believe this will bring increased broadband access to rural areas, whose connectivity coverage rates and speed lag severely compared to urban areas.

The likes of Amazon, Facebook and Google are about to go to war with the U.S. Congress over the most unlikely of causes: Human trafficking. A new bill by Republican Sen. Rob Portman — backed by 19 other lawmakers from both parties — would open the door for state attorneys general and victims alike to take legal action against social networks, review websites, advertisers and others that don’t do enough to combat users who post exploitative content. But the proposal is already drawing opposition from Silicon Valley, where tech companies want to put an end to human trafficking — but don’t want to do so in a way that also subjects them to new lawsuits. The fight centers on a website for classified ads called Backpage, which investigators — in Congress and elsewhere — long have alleged is a haven for illegal prostitution and underage exploitation.

ARTICLE SUMMARY

On Monday, several state attorney generals published press releases announcing that a bipartisan coalition of 33 states and Puerto Rico filed an amicus brief in Microsoft’s warrant case. In their filing, the amici support the U.S. Department of Justice’s request that the Supreme Court grant cert in the case. Subsequently, the Los Alamos Daily Post published an article summarizing the amicus filing. WVIR-TV NBC, a local NBC affiliate in Charlottesville, Virginia, and the Vermont Biz reposted press releases from their respective attorney generals.

THE TOUGHEST THING to convey to newcomers at the DefCon Voting Village in Las Vegas this weekend? Just how far they could go with hacking the voting machines set up on site. “Break things, just try to pace yourself,” said Matt Blaze, a security researcher from the University of Pennsylvania who co-organized the workshop. DefCon veterans were way ahead of him. From the moment the doors opened, they had cracked open plastic cases and tried to hot-wire devices that wouldn’t boot. Within two minutes, democracy-tech researcher Carsten Schürmann used a novel vulnerability to get remote access to a WINVote machine. The Voting Village organizers—including Harri Hursti, an election technology researcher from Finland, and Sandy Clark from the University of Pennsylvania—had set up about a dozen US digital voting machines for conference attendees to mess with. Some of the models were used in elections until recently and have since been decommissioned; some are still in use.

AFTER A PRESIDENTIAL campaign ends–particularly if it ends badly—the campaign’s once-innovative tools to target voters tend to collect dust along with unused boxes of buttons and bumper stickers. Unlike the campaign tchotchke, however, those data analytics and targeting tools could actually be useful to future national and state campaigns. Now, a group of former Obama staffers is trying to break that cycle. The group, Higher Ground Labs, is taking a note from Sand Hill Road and applying venture-capital tactics to progressive politics. On Wednesday, Higher Ground is disclosing investments totaling nearly $1.5 million in 10 startups and enrolling them in a five-month accelerator program, during which they’ll work with mentors from the political-tech space to build their businesses.

GUADALAJARA, Mexico — With his frequent refrains about Mexicans and the need for a wall to contain them, it’s no surprise that President Trump has made few friends in Mexico. Yet here in the capital of Jalisco State, sometimes referred to as Mexico’s Silicon Valley, people are practically celebrating him. “He’s helping us a lot!” Gov. Aristóteles Sandoval exclaimed. “He’s put us on the world’s agenda.” As part of Mr. Trump’s efforts to push an America-first philosophy, he has vowed to restrict the availability of special visas that are widely used by technology companies to hire talent from around the world.

Facebook CEO Mark Zuckerberg hired Hillary Clinton’s former pollster as the tech mogul denies that he’s running for president. Joel Benenson, the chief strategist in Clinton’s 2016 presidential campaign, is conducting research for Zuckerberg and wife Priscilla Chan’s nonprofit, the Chan Zuckberberg Initiative, Politico reported Wednesday. While Benenson’s work, done through his company Benenson Strategy Group, will focus on the couple’s philanthropy, it gives Zuckerberg access to a top pollster as rumors emerge of a potential presidential run.

NOTABLE QUOTES

“Suggesting that people don’t really want security from their online services is frankly insulting, what of those in society who are in dangerous or vulnerable situations, let alone those of us who simply want to protect our communications from breach, hack or cybercrime.”

“Administrative subpoenas are in fact impossible to reconcile with the Fourth Amendment… Neither digital nor hard records will be safe from unreasonable government searches and compelled disgorgement.”

“If people move off those encrypted services to go to encrypted services in countries that won’t share the metadata, the government actually has less information, not more. And so as technology evolves these are complicated conversations, we are in close communication working through the issues all around the world.”

“[E]very dictate of prudence favors a congressional four-year sunset if it decides to extend section 702 beyond December 31, 2017. That would compel a fresh and more informed congressional examination of the statute after the 2020 presidential election.”

“Congress in 1986 had great foresight. That foresight, though, only lasted for a time. Laws protecting emails and other stored electronic communications from the government’s potentially prying eyes need to be updated to reflect modern technology and societal expectations of privacy. Rules that hinder law enforcement from accessing communications stored overseas with valid warrants need to be similarly updated.”

“The Supreme Court should maintain the distinction outlined in Smithand Miller between the contents of communications and the incidental transmittal data voluntarily relinquished to and held by a third-party service provider. The rationale underlying the third-party doctrine still has great force today, and the court should not undermine or erode that established precedent with a CLSI carve-out. Societal concerns about the private nature of CLSI are better addressed by Congress, which has the expertise to account for fast-paced and unforeseen technological advances.”

“We would obviously rather not remove the apps, but like we do in other countries, we follow the law wherever we do business. We strongly believe participating in markets and bringing benefits to customers is in the best interest of the folks there and in other countries as well.”

“This court’s review is necessary to address the Second Circuit’s remarkable conclusion that a private company has unfettered discretion to shield evidence of crime from law enforcement, simply by electronically sending that evidence out of the jurisdiction,”

“I understand that in the US they have many other problems in this new administration, so privacy and data protection are not necessarily a priority. But if we look at the strategic dimension and what it means internationally speaking, they should realise that it should now be a priority,”